When Is Employee Drug Testing Legal?

By April Maguire

4 min read

Are you concerned about your employees’ productivity? According to a recentBloomberg Businessweek article, employees who use illicit drugs are more likely to miss or skip work than those who do not partake. These circumstances may be especially problematic for small business owners who rely on every single employee’s commitment in order to stay afloat. Additionally, when drug users are in the office (whether or not they are under the influence of substances), they may be less productive and can even be a distraction to those around them. In light of this evidence, many employers now require a drug test at the time of hire.

If you do opt to drug test potential or current employees, it’s important that you keep your state’s specific rules and regulations for testing in mind. Understanding when it is and isn’t legal to test your workers is crucial to protecting your business from legal issues in the future.

Regional Drug Testing Laws

The state in which your company is based may determine when and under what circumstances you can administer drug testing. For instance, a number of states restrict a company’s ability to randomly test employees unless they work in safety positions, such as pilots or truck drivers. Additionally, in many states, drug testing of job applicants is only permissible once the job offer has been made.

Specific states may also have additional rules when it comes to preparing candidates for the test. In the state of New York, for example, drug testing is only permissible when employees have signed a written policy agreement and the business has provided 60 days’ notice. Additionally, Virginia requires employers to pay for the testing themselves rather than asking workers to do so. If you do decide to drug test employees—and your state allows you to do so—it’s important that you follow the correct screening guidelines to protect your business and avoid potential lawsuits.

States may also enact policies relating to the courses of action a company can take after an employee fails a drug test. For example, California requires employers to accommodate workers who wish to enter substance treatment programs. Viewing your state-specific policies and guidelines is the best way to make sure you aren’t violating any rules during your quest for a drug-free workplace.

When Is It Legal and When Is It Unlawful to Drug Test Employees?

No matter in which state you reside, the law requires that employers take steps to protect employees who are being drug tested. The ways in which workers are selected for testing may affect the legality of the process, as those who feel like they’ve been chosen too frequently may be able to file a lawsuit against you for discrimination. To protect themselves, companies that want to drug test should take care to develop a random process for selecting workers, or they must test all workers at once. In addition to testing all applicants for the same job in the same way, businesses must utilize a state-certified laboratory for screening. Companies should take care to keep the results of the test confidential, as this is considered personal health information.

Finally, employers should be cognizant of both state and federal drug laws before acting on the results of any drug testing. For example, many states allow medical marijuana usage even though federal law still classifies the drug as an illicit substance; Colorado, Washington state and Washington D.C. have also legalized the recreational use of marijuana. To protect their assets, companies may want to consider detailing specific rules regarding marijuana usage in their testing policies.

When to Consider Drug Testing

In certain circumstances, drug testing may be necessary to protect not just the interests of the company but also the larger community. Workers whose jobs require them to drive buses or trains, fly airplanes or operate heavy machinery on a regular basis could pose a serious danger to others if they use illicit drugs. To protect the public, many companies with these types of employees perform both pre-employment and random drug testing. In fact, companies in the transportation industry may be required to screen certain employees (those whose impairment constitutes a direct threat to public safety) due to 1991’s Omnibus Transportation Employee Testing Act.

Employers may also want to consider drug testing in cases when they have areasonable suspicion that an employee is under the influence. However, because workers who feel singled out can and do file lawsuits when falsely accused, it’s important that you don’t test workers based on a whim. “Reasonable” causes for testing may include physical evidence of substance abuse, drugs found in an employee’s locker, and suspicious action, appearance and/or conduct on the job.

If you do decide to screen your employees, be sure to follow all the state and regional guidelines for your area. This is the best way to protect both you and your workers in the long term.

Information may be abridged and therefore incomplete. This document/information does not constitute, and should not be considered a substitute for, legal or financial advice. Each financial situation is different, the advice provided is intended to be general. Please contact your financial or legal advisors for information specific to your situation.

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